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damages for their refusal to enter into the contract. * * * This principle is as fatal to a suit in equity as to an action at law."

contract had been let to another party, municipality to enter into a contract with him," through the connivance and as a result of a citing a number of cases; "and the courts hold conspiracy between that party and other that he cannot maintain an action at law for contracting firms and with members of the Denver city council. While the case before us is denominated mandamus it in a measure, and as we think improperly, combines features of an injunction in that it asks an injunction restraining the city authorities of Hannibal from awarding the contract to the Courier-Post and to enjoin the latter company from accepting and acting under the contract and so the trial court did. Notwithstanding the difference in the form, I think the principle is as applicable to the one as to the other. In the Colorado Paving Company Case, Judge Sanborn, who wrote the opinion for the United States Circuit Court of Appeals of this circuit, says, that in spite of affidavits denying it, the evidence tended to show an agreement between the successful bidder and certain other bidders to divide profits; in other words, a fraudulent bid. Present these facts, Judge Sanborn says that the first question presented is:

"Has the lowest, but unsuccessful, bidder for municipal work, any such vested right to or interest in the contract for it as will enable him to maintain a suit to compel its award to him, and to enjoin the successful bidder and the municipality from entering into a contract for the performance of the work because that contract has been awarded to a higher bidder in violation of the usual provision in city charters that such work shall be let to the lowest reliable and responsible bidder? In other words, has the lowest bidder the legal capacity to maintain .such a suit as that at bar? That taxpayers, whose taxes are to be increased and whose property is to be depreciated in value by the fraudulent or arbitrary violation of this provision by the officers of a municipality, may maintain a bill to enjoin their proposed action, is a proposition now too well settled to admit of question."

Yet this is the precise position here occupied by this relator. This decision by Judge Sanborn is in line with the decision of our Supreme Court in the cases heretofore cited, and to my mind is conclusive against the right of this relator to maintain this action.

In these cases, too, I find my second reason which prevents me from agreeing to the conclusion reached in this case. That is, I do not think the relator here has such a standing as entitles it to maintain this action. It is endeavoring to enforce a right, personal to itself, and in which, so far as the public is concerned, and so far as concerns any allegations contained in its petition, or in the writ, do not concern the public. The relator here is not applying for relief as a citizen or as a tax payer, but in its own interest, and it is to be again noted and emphasized that no citizen nor any tax payer of the city of Hannibal has appeared or intervened in this matter. I am very decidedly of the opinion that the relator's personal interest does not entitle it to the benefit of the exercise of the high prerogative writ of mandamus by the court in its favor to enforce a personal right. After citing many authorities Judge San- For these reasons I think that the judgment born says: of the circuit court should be reversed.

"These suits, however, stand upon the ground that the statutes on which they are based were enacted, and the duties there specified were imposed upon the public officers, for the express benefit of the property holders and tax payers who bring the suits. The appellee (plaintiff) pays no taxes for this paving. He has no property that will be injured by the violation of the provisions of the charter relied upon, and no one who has is here to complain of their violation. So far as the purpose of its enactment is concerned, the complainant is a stranger to the statute,-one whose interests were not considered or intended to be conserved by its enactment. He is a mere bidder for some of the public work of this city,-a contractor or one who desires to be a contractor. His interest and that of his class, the contractors with municipalities for public work, is to get the highest price for their work and materials. It is obvious that this statute was not enacted for their benefit."

In United States Wood Preserving Co. v. Sundmaker, 186 Fed. 678, 110 C. C. A. 224, the Circuit Court of Appeals of the Sixth Circuit held that laws providing for the letting of public contracts to the lowest and best bidder are enacted for the benefit of property holders and tax payers and not for the benefit of and to enrich bidders and are to be executed with sole reference to the public interest.

As will appear by what I have written, I have none but words of condemnation for public servants who will allow their political bias to control in the performance of a duty they owe to all the people. But here I consider principles involved that cannot be ignored without resulting in far reaching injury. Those are, first, the courts cannot by mandamus, control the discretion of this public body; second, they will not, in a case such as here presented, act on the claim of a disappointed bidder.

My conclusion is that this action cannot be maintained, that the alternative writ should be vacated and a permanent writ denied.

After further discussion of the objects of the statute requiring competitive bidding for public works, Judge Sanborn continues:

BLAKELY v. MILLER. (No. 11133.) (Kansas City Court of Appeals. Missouri. June 1, 1914.)

1. TRIAL (§ 333*)-VERDICT-RESPONSIVENESS TO ISSUES.

"It is upon this principle that it is now settled by the great weight of authority that the The verdict and judgment were responsive lowest bidder cannot compel the issue of a to the issues, where the verdict was for $600, writ of mandamus to force the officers of the and a contract fixed plaintiff's commission at

$1,000, the seller to pay $1 per acre commis- I was under a special contract which fixed the sion, but, while the farm was listed as con-commission at $1,000, no more and no less, taining 1,000 acres, the purchaser refused to take it because it in fact only contained 600

and that consequently the verdict, if for plaintiff, should have been for that sum and

acres.

[Ed. Note.-For other cases, see Trial, Cent. not for less. Dig. § 784, 786; Dec. Dig. 333.1

[2] The general rule is that a party will 2. A PEAL AND ERROR (§ 1033*)-REVIEW-not be heard to complain in the appellate HARMLESS ERROR-VERDICT.

A party will not be heard to complain in court that the verdict rendered against him the appellate court that the verdict rendered was not as large as it should have been. Ceagainst him was not as large as it should have ment Co. v. Bruce, 160 Mo. App. loc. cit. 255, been, though there is an exception where the 142 S. W. 783. As we observed in that deissue is contract or no contract and the alleged contract unalterably fixes the measure of lia-cision, an exception to this rule is found in bility. cases where the issue is contract or no contract and the alleged contract unalterably fixes the measure of liability.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4052-4062; Dec. Dig. 8 1033.*]

Appeal from Circuit Court, Jackson County; D. E. Bird, Judge.

Action by J. T. Blakely against R. M. Miller. Judgment for plaintiff, and defendant appeals. Affirmed.

H. L. Green, of Kansas City, for appellant. Frank Yeoman, of Kansas City, for respondent.

JOHNSON, J. [1] This is an action for the recovery of a real estate agent's commission. The petition alleges that defendant, who lives in Kirksville, employed plaintiff, a broker in Kansas City, "to find a buyer either for cash or exchange" for a farm of 1,000 acres owned by defendant in Phillip county, Ark.; that defendant agreed to pay a commission of $1 per acre for any of the said lands so sold or exchanged through the efforts of plaintiff; that plaintiff found a purchaser who was ready, able, and willing to take the property on the proposed terms; and that defendant refused to comply with the contract. The prayer is for judgment in the sum of $1,000. The answer is a general denial. The jury returned a verdict for plaintiff for $600, and defendant appealed from the judgment rendered thereon. A reversal is asked on the ground that the verdict and judgment are not responsive to the issues made by the pleadings and evidence.

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The cases relied upon by defendant (Cole v. Armour, 154 Mo. 333, 55 S. W. 476; Witty v. Saling, 171 Mo. App. 574, 154 S. W. 421; Weisels v. Investment Co., 150 Mo. App. 626, 131 S. W. 353) fell under the exception to the general rule, since in each of them the contract in controversy unalterably fixed the measure of liability, and the pleadings and evidence afforded no substantial basis for the action of the jury in returning a verdict for a less sum. In the present case the contract did not deal so inflexibly with the measure of liability in the event of a breach by defendant. The stipulated commission was not the lump sum of $1,000, but was clearly made dependent as to its gross amount upon the actual acreage of the land. The inference is unavoidable that in fixing the commission at $1 per acre defendant acted advisedly and with the purpose of saving on the commission should it turn out (as it did) that, the farm did not contain the represented acreage. The case being governed by the general rule, the verdict and judgment are responsive. Affirmed. All concur.

WRIGHT v. SOUTHERN PAC. CO. et al.
(No. 11210.)
(Kansas City Court of Appeals.
June 13, 1914.)

Defendant wrote plaintiff a letter inclosing a descriptive list of properties he owned and 1. CARRIERS (§ 408*) Loss OF BAGGAGE desired to sell or exchange and stating that GENERAL TRAVERS AND SPECIAL DEFENSE. he "would be willing to pay one dollar per The cause of action alleged by the petiacre commission on any of them." The Ar- tion, loss of baggage in interstate transportation, being governed by federal laws, dekansas farm was listed and described as con- fendant is not deprived of a defense thereunsisting of 1,000 acres of land bordering on der, under its general traverse, because of the Mississippi river, but above the high- pleading a special defense founded on a state law. water plane and not subject to overflow. Plaintiff found a buyer who was ready, willing, and able to take this farm and who entered into a contract with defendant for an exchange of properties. Afterward defendant refused to perform the contract, and it was rescinded by agreement. The refusal resulted from the discovery that the farm contained only 600 acres, instead of 1,000 acres as represented. The contention of defendant is that the employment of plaintiff

Missouri.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1557-1571; Dec. Dig. § 408.*] 2. CARRIERS (§ 405*) Loss of BAGGAGE LIMITING LIABILITY INTERSTATE COM

MERCE.

Under the federal statutes, the provision, in a ticket for interstate transportation, limiting the carrier's baggage liability to "$100 for a whole ticket," being in accordance with the carrier's tariff filed with the Interstate Commerce Commission, governs in case of loss, even through the carrier's negligence; the passenger not having, at time of checking her

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

"

baggage, declared a greater value and offered to pay for additional service.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1544-1549; Dec. Dig. § 405.*] Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Ella F. Wright against the Southern Pacific Company and another. From a judgment for plaintiff for less than claimed, she appeals. Affirmed.

Boyle & Howell and Jos. S. Brooks, all of Kansas City, for appellant. Watson, Watson & Alford, of Kansas City, for respondents.

JOHNSON, J. The defendants are connecting carriers, and maintain a joint agency at Kansas City for the sale of joint tickets for transportation from that city to places on the Pacific Coast. On December 19, 1910, plaintiff purchased at that office a first-class ticket at the regular rate, entitling her to transportation from Kansas City to San Francisco, with stop-over privileges at Los Angeles and Santa Barbara. She used the ticket and checked baggage thereon, consisting of a Barnum wardrobe trunk filled with articles of wearing apparel valued at $1,900. The baggage was lost during the transportation, and this suit is for the recovery of its actual value.

[2] The case was tried in the circuit court on an agreed statement of facts, in which the loss of the trunk during its transportation as baggage, and the value of the trunk and its contents, are admitted facts, as are also the facts that a provision in the ticket attempted to limit the baggage liability of the carriers to "$100 in value for a whole ticket," and that this provision was in accordance with the tariff of the defendant companies filed with the Interstate Commerce Commission. This tariff was introduced in evidence, but is not set out in the abstract, and we have before us no other regulation contained therein relating to baggage, except that mentioned limiting liability for baggage carried free. The court refused to give plaintiff judgment for the actual amount of her loss, but rendered judgment for her in accordance with the limitation in the ticket. Plaintiff appealed.

The Supreme Court of the United States, in Railroad v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526, 58 L. Ed. —, have exhaustively discussed the subject of such regulations of common carriers limiting liability for loss of baggage carried as an incident to interstate transportation of passengers, and all that needs be said in support of our conclusion to affirm the present judgment is that that decision is binding upon us and leaves nothing to be said, except that the failure of the ticket to give expression to the right of the carriers to impose a charge for carrying baggage of a declared value in excess of $100 does not materially differentiate this case from that considered by the Supreme Court, in which the ticket and tariffs filed with the Interstate Commerce Commission contained a provision limiting such liability to $100, “unless a greater value is declared and stipulated by the owner and excess charges thereon paid at time of checking the baggage." The gist of the decision is that, as the limitation of liability for baggage was filed and posted by the carrier as a part of its schedules for passenger tariff, the limitation thereby became and was an essential part of its rate, from which, under the interstate commerce law, it could not deviate, and by which the passenger was bound, regardless of her knowledge or assent to it. The rate of the ticket issued to plaintiff was based in part on the valuation of the baggage agreed upon by the parties; such agreement being implied from the fact that plaintiff, charged with knowledge of the rate and the service it would purchase, had her trunk checked under its terms without declaring a greater value and offering to pay a reasonable charge for the extra service.

[1] The answers plead a defense founded upon the statutory law of California as applied by defendants to a provision in the ticket that "baggage liability is limited to wearing apparel not to exceed $100 for a whole ticket [this was a whole ticket] and $50 for one half ticket." The answers do not base this defense upon the Carmack Amendment to the Hepburn Act (Act June 29, 1906, c. 3591, 34 Stat. 593 [U. S. Comp. St. Supp. 1911, p. 1307]), and plaintiff contends that this omission precludes defendants from employing such defense; but we do not accept this view of the pleaded issues. The facts alleged in the petition and conceded in the answers show conclusively that the transaction in question was in the field of interstate commerce, and therefore must be considered as governed by the national laws, which, since their enactment, have superseded all state laws and policies pertaining to the subject. Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Railway v. Miller, 226 U. S. 513, 33 Sup. Ct. 155, 57 L. Ed. 323; Railway v. Latta, 226 U. S. 519, 33 Sup. Ct. 155, 57 L. Ed. 328; Manufacturing Co. v. Railroad, 174 Mo. App. 192, 156 S. W. 830; Sloop v. Delano (decided at this term) 169 S. W. In substance the petition alleges a cause of action under the national laws, and the fact that a special defense founded on a state law is pleaded will not deprive defendants of the defenses raised by the general traverse in their answers.

The regulation in question was a part of the lawful rate and "the lawful rate is that which the carrier must exact and that which the shipper must pay. To the extent that such limitations are not

forbidden by law, they become, when filed, a 14. MUNICIPAL CORPORATIONS (§ 282*)-STREET part of the rate." Railroad v. Hooker, suIMPROVEMENTS-SELECTION OF MATERIAL. pra. And in the series of decisions of the give consideration to the request of a majority It was not improper for a city council to Supreme Court dealing with the subject of of the property owners that a particular kind rates based in part upon value the rule is of concrete be used in the street improvement, where such material was not selected arbitrarideclared that, even in instances of the loss ly in obedience to such request, but only after of the property by negligence of the carrier, the councilmen had convinced themselves that the recovery of the shipper or passenger will such concrete was a meritorious article. be restricted by such limitation or regulation fixing the value on which the rate is based as the limit of the carrier's liability. If plaintiff had declared a greater value at the time of checking her baggage and offered to pay for the additional service, a different question would be presented; but in the absence of such declaration she must be held to have acquiesced in the limitation imposed by the filed and published rate and by the terms of her ticket, and under the rule just noted she cannot be allowed to recover in excess of the agreed valuation of her property.

The judgment is affirmed. All concur.

MEEK et ux. v. CITY OF CHILLICOTHE et al. (No. 11121.)

(Kansas City Court of Appeals. Missouri. May 18, 1914. Rehearing Denied June 13, 1914.)

1. MUNICIPAL CORPORATIONS (§ 330*)--CONTRACTS-LETTING TO LOWEST BIDDER-PATENTED ARTICLES.

Under Rev. St. 1909, § 9619, relating to cities of less than 30,000 inhabitants incorporated under a special charter, contracts for street improvements are required to be let to the lowest and best bidder; but it is not a violation of such provision that there is a patented article or one held in monopoly which in the eye of the authorities is of such exceptional value that it would be a public injury to be deprived of it.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 854, 855; Dec. Dig. § 330.*]

2. MUNICIPAL CORPORATIONS (§ 282*)-COUNCIL-CONCLUSIVENESS OF ACTS.

Where a city council is by law invested with authority to prescribe the character of a proposed street improvement, its action in good faith in selecting a patented material controlled by a monopoly cannot be impugned on the ground that such material in fact possesses no points of superiority over others used for the

same purpose.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 750-752; Dec. Dig. § 282.*]

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[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 750-752; Dec. Dig. § 282.*]

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

Action by Jim E. Meek and wife against the City of Chillicothe and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

L. A. Chapman and Paul D. Kitt, both of Chillicothe, for appellants. Frank Sheetz and ohn H. Taylor, both of Chillicothe, and Culver & Phillip, of St. Joseph, for respondent Hassam Paving Co.

"When the council shall by ordinance find and declare that a majority of the resident owners of the property liable to taxation therefor, who shall also own a majority of the front feet owned by residents of the city abutting on the street or alley, proposed to be improved, have not filed with the city clerk a protest against such improvement, such finding and declaration shall be conclusive after the execution of the contract for said improvement, and no special tax bill shall be held invalid for the reason that a protest sufficiently signed was filed with the city clerk."

JOHNSON, J. This is an action in equity to enjoin the city of Chillicothe from entering into a contract for paving one of the public streets pursuant to an ordinance enacted for that purpose. Plaintiffs are the owners of property which would be assessed for the improvement. Chillicothe has less than 30,000 inhabitants, is incorporated under a special charter, and therefore derives power and authority to pave its streets by virtue of sections 9618 to 9620, Rev. Stat. 1909. The proceedings prescribed in those sections for the paving of a street include the passage by the council and the publication of a resolution declaring such work and improvement necessary to be done and the preparation by the engineer and filing of plans and specifications and of an estimate of the cost of the improvement. Property owners are given an opportunity to protest against the proposed improvement in writing, and if owners who are residents of the city, and who own a majority of the front feet abutting on the street, do not protest within the allotted time, "the council shall have power to cause a contract for said work to be let to the lowest and best bidder on the plans and specifications filed as aforesaid with the city clerk by the city engineer, not less than one week's advertisement for bids thereon being made in some newspaper published in the city." Further it is provided:

* *

All of these statutory prerequisites were properly performed in the present case, but before the contract was let plaintiffs brought the present suit.

there is a well-recognized exception to this rule, viz.:

The resolution, specifications, estimate, initiatory ordinance, and the various publications uired by law provided for the pavement of the street with "Hassam pavement," a patented process controlled by a monopoly. The real ground on which plaintiffs claim the right to enjoin the city from letting the contract is that the pleaded and proved facts show beyond question that the patented material does not belong to the class exempt from the statutory mandate that the contract shall be let only after the prescribed opportunity for competitive bidding has been given. It appears from the evidence that the council selected Hassam pavement in deference to the written request of a majority of the property owners. A strong minority protested, but the council found, and the ordinance for doing the work recited, that the protest was not signed by a majority, and there is no evidence in the record contradictory of that finding and recitation. Plaintiff introduced two witnesses who testified as experts that Hassam pavement, which is a species of concrete paving, is ferior in every way to concrete mixed and applied in the ordinary manner, is less expensive, and that the street could be paved with common concrete at a cost of about two-thirds of the estimate for Hassam pave

ment.

"Where there is a patented article, or one held in monopoly, which in the eye of the authorities is of such exceptional value and superiority that it would be a public injury to be deprived of it, it may be required to be used; the courts having concluded that the lawmakers did not intend to prevent a city from securing material thus held." Barber Asphalt Pav. Co. v. Hunt, 100 Mo. 22, 13 S. W. 98, 8 L. R. A. 110, 18 Am. St. Rep. 530; Verdin v. City, 131 Mo. 26, 33 S. W. 480, 36 S. W. 52; Paving Co. v. Field, 188 Mo. 182, 86 S. W. 860; Custer v. Springfield, supra.

[2,3] Where the law invests the council with authority to prescribe the character of the proposed improvement, and the council, in good faith, selects a patented material controlled by a monopoly, such action cannot be impugned on the ground that the material, in fact, possesses no points of superiority over others used for the same purpose. There is no proof that the council acted in bad faith, and without such proof the whole case of plaintiffs falls to the ground. Concede that plaintiffs' witnesses were disinterested and correct in their opinion that the patented concrete was not superior to the common, such facts alone would not accuse the members of the council of bad faith, but only of having displayed poor judgment.

As is said by the Springfield Court of Appeals in Custer v. Springfield, supra:

"It is a matter of common knowledge that the kind and character of material to be used in there is much difference of opinion regarding paving public streets, and much discretion must be left to the city council of the cities in selecting the material, and, where they have acted in good faith, courts are generally slow, indeed, to interfere with their discretion. The veto power is given to the property owners, and they can defeat the improvement, no matter how much it may be needed, by filing the required remonstrance."

Plaintiffs argue from these facts that the monopoly created by the patent is nothing short of a fraudulent device by which the monopolistic contractor is enabled to obtain 50 per cent. more for inferior concrete than standard concrete would cost the property owners under open competition. Further it is charged in the petition and evidence of plaintiffs that the council made no investigation to ascertain the relative merits of the patented and unpatented concrete pavements, but allowed the petitioning property owners to control their choice of paving materials, while the charter imposed the duty on the council of exercising its own discretion and judgment in the selection of a pavement for the street.

At the close of plaintiffs' evidence the court rendered judgment for defendant, and plain-interference. tiffs appealed.

[1] The general rule is that, where the city charter provides for letting the contract for a street improvement to the lowest and best bidder, the contract must be let in conformity to such provisions, and, if not so let, will be held void, as will also the subsequent assessment. Schoenberg v. Field, 95 Mo. App. 241, 68 S. W. 945; Paving Co. v. McLord, 145 Mo. App. 141, 130 S. W. 371; Curtice v. Schmidt, 202 Mo. 703, 101 S. W. 61, 10 Ann. Cas. 702; Custer v. Springfield, 167 Mo. App. 354, 151 S. W. 759. But as we

In the absence of convincing proof of fraud or bad faith, we must assume the council honestly exercised the discretion reposed in it by law. Courts should be careful not to be led into substituting their judgment for that of the city council in matters over which the law intends the latter should have exclusive jurisdiction, and should not interfere except in cases of male fides, or of a clearly arbitrary abuse of discretion, Mere errors of judgment afford no ground for equitable

[4] We do not find the charge well supported that the council selected the Hassam pavement blindly and arbitrarily in obedience to the wishes of the petitioning property owners. We think the evidence, when analyzed, shows the councilmen convinced themselves that the patented process was meritorious and was not a mere device to enhance the cost of concrete. Instead of being reprehensible, it was praiseworthy for them to listen attentively and sympathetically to the request proffered by a majority of the owners whose property would be taxed

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